US v. Barone

• Citation: 846 F. Supp. 1016
• Decision Date: 25 January 1994
• Docket Number: Cr. No. 89-289-WF.
• Parties: UNITED STATES of America v. Pasquale G. BARONE.
• Court: U.S. District Court — District of Massachusetts

846 F. Supp. 1016

UNITED STATES of America v. Pasquale G. BARONE.

Cr. No. 89-289-WF.

United States District Court, D. Massachusetts.

January 25, 1994.

Gregg L. Sullivan, Jeffrey Auerhahn, U.S. Attys., Office of the U.S. Atty., Boston, MA, for U.S Bernard M. Grossberg, Richard M. Egbert, Boston, MA, for Barone.

MEMORANDUM AND ORDER

WOLF, District Judge.

The court has carefully considered the defendant Pasquale G. Barone's motion for a new trial, which the government opposes. For the reasons described below, the motion is denied.

I. The Two Modified Allen Charges

The defendant's motion for a new trial does not expressly rely on the court's decision to give the jury a second modified Allen charge after it reported it was deadlocked on October 26, 1993. The court has, however, considered whether the defendant is entitled to a new trial on this basis and has determined that he is not.

The jury began its deliberations on the afternoon of October 20, 1993, after a nine week trial involving, among other things, charges that the defendant committed murders on behalf of the Mafia. The first several days of deliberations were each relatively brief and substantially interrupted by questions which required considerable time for the formulation of appropriate responses. See e.g., October 21, 1993 Transcript ("Tr.") at 1-47. The jury was not sequestered, was excused as it requested at about 4:00 p.m. each day, and, as it requested, was not required to deliberate on Saturday or Sunday.

On Monday, October 25, 1993, the jury reported it had "reached an impasse" and asked whether there was "any guidance the court could give us to help us with our deliberations." October 25, 1993 Tr. at 5. The defendant did not move for a mistrial. After consulting counsel, the court gave a modified Allen charge in the form approved by the Court of Appeals for the First Circuit. Id. at 11-13; see United States v. Nichols, 820 F.2d 508, 511 (1st Cir.1987); United States v. Angiulo, 485 F.2d 37, 39 (1st Cir. 1973).¹ This instruction emphasized, among other things, that no juror should give up his or her honest beliefs solely for the sake of reaching a unanimous verdict and that if the jurors made their best efforts to reach a unanimous verdict, but did not succeed, they had a right to fail to agree. October 25, 1993 Tr. at 11-13. At 3:15 p.m. the jury reported that there was no change in its deliberations and asked to return the next morning. Id. at 16.

On October 26, 1993, the jury deliberated until about 3:00 p.m. when it reported it had made no progress in its deliberations and saw no potential for reaching a unanimous verdict on any of the four counts through continued rational discussion. October 26, 1993 Tr. at 8. The defendant expressed the view that giving the jury another modified Allen charge was not impermissible in the First Circuit as a matter of law, id. at 9-10, but moved for a mistrial based upon the circumstances of this case, id. at 8-10. The motion was denied, id. at 12, and the jury was excused until the next day.

On October 27, 1993, the jury was again given a modified Allen charge which reiterated, among other things, that no juror should abandon his or her conscientious beliefs for the sake of reaching a unanimous verdict and that the jury had a right to fail to agree. October 27, 1993 Tr. 17-19. No objection was made to the form of the instruction.

The jury continued its deliberations until lunch time. Deliberations were then interrupted until the afternoon of October 28, 1993 because of the issue relating to Juror Douglas P. Berger, discussed below, which arose at lunch.

The court continues to believe that it had the discretion to give a second modified Allen charge and exercised this discretion appropriately. The propriety of any "Allen-type charge depends on whether it tends to coerce undecided jurors into reaching a verdict by abandoning without reason conscientiously held doubts." United States v. Robinson, 560 F.2d 507, 517 (2d Cir.1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). In deciding whether a second modified Allen charge is permissible and appropriate, an individualized determination of coercion is required. Id. (affirming decision to give second modified Allen charge); United States v. Ruggiero, 928 F.2d 1289, 1299-1300 (2d Cir.) cert. denied, Gotti v. United States, ___ U.S. ___, 112 S.Ct. 372, 116 L.Ed.2d 324 (1991) (same); United States v. O'Connor, 580 F.2d 38, 44 (2d Cir. 1978) (same); United States v. Reed, 686 F.2d 651, 653 (8th Cir.1982) (same); but see United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir.1977) (holding second modified Allen charge coercive per se unless jury requests it).

In the present case, the second modified Allen charge was not coercive. The jurors were expressly reminded not to abandon their conscientious convictions in order to reach a unanimous verdict. See Robinson, 560 F.2d at 517; Ruggiero, 928 F.2d at 1299. They were not pressured by being sequestered or required to deliberate in the evening or over a weekend. Perhaps most significantly, after the second modified Allen charge the jury deliberated for a full morning without reaching a verdict before the Berger issue arose, and deliberated further for a day and a half after he was excused before reaching a unanimous verdict on three of the four counts. See O'Connor, 580 F.2d at 44 (jury deliberated several hours after the second charge); Robinson, 560 F.2d at 517 (jury deliberated for more than four hours after second charge). Therefore, viewing the totality of the circumstances, the court continues to believe that the second modified Allen charge was permissible and appropriate, rather than coercive. Thus, the second modified Allen charge does not constitute a valid basis for granting a new trial.

II. Excusing Juror Berger

On the afternoon of October 27, 1993, the court learned that a Court Security Officer ("CSO") had told one of the jurors, Douglas P. Berger, that Berger's cousin, John "Red" Shea, had been represented by Barone's attorney, Richard Egbert, Esq. October 27, 1993 Tr. at 20. The defendant again moved for a mistrial. Id. at 37. The court decided, however, to question Mr. Berger and other jurors before deciding whether to grant a mistrial.

The court repeatedly admonished Mr. Berger not to reveal in his responses how he was voting, or how the jury was divided. See e.g., id. at 75-76; October 28, 1993 Tr. at 15, 25-26. The court then questioned Mr. Berger to determine whether he could disregard the information he had been provided by the CSO, and continue to deliberate and vote based solely on the evidence and the applicable law. October 27, 1993 Tr. at 77-78; October 28, 1993 Tr. at 15-16, 25-26.

Mr. Berger said that he felt he could continue to deliberate based solely on the evidence and the applicable law, but expressed concern that he would be accused of impropriety if there was a hung jury or a not guilty verdict. October 27, 1993 Tr. at 77-78. He characterized that possibility as "something I don't want to deal with." Id. The court expressed doubts about whether Mr. Berger's remarks had been completely candid or credible, id. at 88, and deferred deciding how to proceed until the next day. Id. at 89.

On October 28, 1993, the court initially expressed the view that Mr. Berger's ability to deliberate properly had been impaired and that he ought to be excused. October 28, 1993 Tr. at 2-3. The defendant stated that if the court did not grant a mistrial, Mr. Berger should not be excused. Id. at 4-5. The court decided to question Berger again. Id. at 6.

While initially reiterating the opinion that he could participate properly in deliberations, Mr. Berger indicated that he wished to be excused. Id. at 17. More specifically, he said: "I wouldn't object to being excused . . . I really don't feel I should be here anymore . . . I don't think its right that I stay." Id. When asked again for his "most candid responses" as to whether he could avoid being influenced in what he said or how he voted by concerns about how it might look later, Mr. Berger responded: "I don't know if I can really do that and that concerns me. It concerns me a lot. Maybe it shouldn't, but it does." Id. at 26.²

Having had the opportunity to listen to Mr. Berger over two days and to make assessments based in part upon his demeanor, the court concluded that Mr. Berger would be influenced in his performance as a juror by the information he had received from the CSO, and that there was, therefore, just cause to excuse him from the jury. October 28, 1993 Tr. at 30-31. Accordingly, Mr. Berger was excused pursuant to Fed.R.Crim.P. 23(b).

The court continues to believe that excusing Mr. Berger was a permissible and appropriate exercise of its discretion. When, as here, "the court finds that a communication between jurors and a third party has occurred, it must determine whether or not it was prejudicial and develop a record that affords `an adequate basis for review.'" United States v. Almonte, 594 F.2d 261, 266 (1st Cir.1979). The procedure followed by the court in questioning Mr. Berger and other jurors was guided by the Court of Appeals for the First Circuit decision in United States v. Angiulo, 897 F.2d 1169, 1183-84 (1st Cir.), cert. denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990).

Generally, a trial court has "wide discretion" in deciding whether to remove a juror. United States v. Sears, 663 F.2d 896, 900 (9th Cir.1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148 (1982); see also Angiulo, 897 F.2d at 1185-86. Deliberating jurors may properly be removed if they are exposed to information relating to the case which has not been admitted into evidence and the court determines that their impartiality has, as a result, been impaired. Ruggiero, 928 F.2d at 1300-1302; United States v. Gambino, 788 F.2d 938, 947 (3rd Cir.), cert. denied, 479 U.S. 825, 107...